Wednesday, October 26, 2016
For those thinking back fondly to the days when a nation's leaders spent time translating Augustine and Boethius, note that Alfred the Great died on this date in 899 (there's a nice short piece on Alfred here by A Clerk of Oxford). Alfred is, of course, one of the great figures in English legal history on account of his compilation of laws in the domboc. For an interesting discussion of Alfred's use of Christian sources in the prologue to his legal code, see this article by Michael Treschow, which ends on this hopeful note:
If Alfred was for the Victorians a mirror or icon of their own self-regard, of their empire, of their civic piety, he is becoming for us a mirror of our suspiciousness, of our mistrust of public virtue and piety, indeed of our disdain of anything that claims to be good. But let us be wary of any easy or hasty reduction of Alfred’s image to an opportunistic, even Machiavellian, guise. This prologue’s public use of piety reads as no mere calculated display. Reverence for the king of Wessex is beside its point. Its real work is to present Scripture that it may search the hearts of its readers and direct them to serve not themselves but live in charity with their neighbour — especially in the practice of public life. It allows that the good of the state is a harmony of love and justice. It allows that the state can seek to be gracious through obedience to basic principles of revealed truth.
Tuesday, October 25, 2016
On this date in 1970, Paul VI canonized 40 martyrs of the English Reformation, including Anne Line, 10 Jesuits, and an Augustinian friar (John Stone). Among the Jesuit martyrs are Edmund Campion, Henry Walpole (a lawyer who appears to have been brought to conversion by witnessing the execution of Campion in 1581), Robert Southwell, and Thomas Garnet. John Finnis and Patrick Martin have argued ("Another Turn for the Turtle," Times Literary Supplement, April 18, 2003) that the martyrdom of Line inspired Shakespeare's poem "The Phoenix and Turtle." A bit from their piece:
[Henry] Garnet, the Jesuit superior in England, reported Ann’s execution to Rome with priestly words of consolation and edification. This poem’s way of proceeding is different. More reticent, artificed, opaque and resonant than our discussion may suggest, it makes no display of Catholic belief, or even of common Christian hope for life beyond death: there is resting “to eternity”. But the poem’s Reason, while insistent that Love—pre-eminent to Jesuit teachers, as Faith to the Protestant—“hath reason” even where “reason hath none”, does not permit itself Garnet’s confidence: that Ann Line died a saint to (or through) whom, not for whom, one should sigh one’s prayers. “Death is now the Phoenix’ nest”: no retailing here of pagan-Christian phoenix allegories of rebirth and immortality. There is loss which, though not annihilating, is irreversible: from “now” on, “Truth may seem but cannot be . . . Truth and beauty buried be”.
And in a recent review in the TLS by Anna Whitelock of a book by John Guy on the later years of the reign of Elizabeth I, Whitelock notes the role of the Queen herself in all of this--gruesome reading, but a caution against whitewashing English history:
For many readers it will doubtless be Guy’s vivid account of Elizabeth’s cruel methods against Catholics or suspected traitors and the climate of terror amid economic crisis and political and social discontent that is most striking and unfamiliar. Guy convincingly argues that Elizabeth sanctioned, and even encouraged, the activities of the notorious Catholic-hunter and rackmaster Richard Topcliffe, who tortured suspects in a “strong room” in his house in Westminster. Indeed, “strong archival evidence exists that she knew him personally, thoroughly approved of his activities and received reports directly from him rather than through intermediaries”. The smoking gun which proves her acquiescence in some of Topcliffe’s worst atrocities lies buried in Burghley’s papers. When the Jesuit priest Robert Southwell was arrested in 1592, Topcliffe wrote to tell Elizabeth how the prisoner was shackled to the wall in his “strong chamber” and had responded to interrogation “foully and suspiciously”. Topcliffe sought the Queen’s permission to “enforce” the prisoner “to answer truly and directly”, by stretching him out against the wall using “hand gyves” (iron gauntlets). Although the Queen’s reply to Topcliffe’s letter was not written down, the fact that he proceeded with the torture methods he had described and with no further warrant as the law required, is in Guy’s view “chilling proof that she gave her consent in the full knowledge of what he was about to do. Topcliffe would not have dared to act as he did had the Queen forbidden it, and she was far from squeamish”. Moreover, when, after a two and a half years of solitary confinement in the Tower of London, Robert Southwell was finally brought to the gallows at Tyburn, Elizabeth specifically ordered that he be forced to endure extra suffering, and after being hanged, Southwell should be cut down while fully conscious and disembowelled. This was no one-off. Ten years earlier, she had issued similar orders when William Parry, a failed assassin, made the journey to Tyburn. After just one swing of the rope he was cut down from the gallows on Elizabeth’s order and while he was still fully conscious, had his heart and bowels ripped from his body with a meat cleaver. Finally, after he had let out a “great groan”, his head and limbs were severed from the corpse and the head set on London Bridge as a warning to others of the “terrible price of treason”. So much for Good Queen Bess.
Monday, October 24, 2016
I was among the participants in the inaugural meeting this past weekend of the Tradition Project sponsored by the Center for Law and Religion at St. John’s University School of Law (with thanks to the hard work and hospitality of Mark Movsesian and Marc DeGirolami). It was a rich conversation over a couple of days on the place of tradition in law and politics, both in our formal sessions and in our social gatherings. A few initial thoughts about the project, with more to come as I continue to think about what we discussed.
One topic I kept coming back to was the supposed dichotomy (or at least tension) between “tradition” and “reason” one encounters in discussions of tradition (recalling Edmund Burke’s line about “wisdom without reflection”). On a crude formulation of this view, one either does “what has always been done” in a reflexively deferential way or subjects all decisions to a hard, calculating test of reason. That seems to me a poor way to understand the possible place of tradition in law.
The better view, I think, is to appreciate that rationality (including legal reasoning) is inescapably embedded in a tradition, even when the “tradition” is an emancipation from tradition itself. In the discussion I moderated on the American religious tradition, we read, among other things, pieces by Nathan Hatch and John McGreevy illustrating the ways in which American Christianity has a long tradition of rejecting certain forms of tradition (not least Catholicism) and placing an emphasis on “thinking for oneself.” This, in turn, has shaped in historically complex ways how the American religious, political, and legal traditions interact.
I’ve mentioned before (here) how much I think John Henry Newman’s treatment of tradition and argument might help us tackle some of these problems. Apart from straightforward demonstrations of, say, mathematics and logic, we come to arguments with a background constellation of beliefs and practices—a “tradition.” Achieving clarity about the traditions (even if one of emancipation from tradition) we bring to legal arguments is an important first step that the Tradition Project has undertaken.
Monday, October 10, 2016
We could all use a tonic for this political season, and what could be better than the soothing prose of John Henry Newman, whose feast was yesterday? I've noted before some resources from Newman for how to think about legal arguments. And I recently came across an essay (available here to those with JSTOR access) by Alvan Ryan from the Review of Politics in 1945 that nicely pulls together themes from Newman's writings (some of them quite obscure, such as the essay "Who's to Blame?" from his 1872 collection Discussions and Arguments) on politics. Ryan concludes:
If one were to summarize Newman's thought, it might be said that it has four phases: (1) the denial of the excessive claims of the State against the Church; (2) the de facto recognition of cultural and national traditions as determining the mode of operation of the Church in each State; ( 3) the affirmation of the rights of the person against the State, which leads Newman to his distinction between Nation and State, and explains his distrust not only of the tyranny of unregulated State power, but his dislike for radical democracy; (4) the affirmation of the dignity of the person, and the appeal to the dictates of conscience against the extreme advocates of Papal Supremacy, whose views, by the way, cannot be identified with those of the Church. Only by recognizing such a complex of relationships, so Newman held, could just and lasting solutions of political problems be achieved.
Friday, September 16, 2016
As I write, first-year torts students across the country are learning that much of the law of negligence isn’t really “law” but is instead an accumulation of judgments about something called “policy” (often based on cost-benefit analysis) by courts about whether liability is appropriate. To think about, for example, whether a duty of care existed between this defendant and this plaintiff in any other way is a hopelessly naïve harkening back to the bad old days of privity and other retrograde concepts in cases like Winterbottom v. Wright (1842).
That all seems to me badly mistaken. It’s a legacy of the moral skepticism of Oliver Wendell Holmes and William Prosser to reject any vestige of formalism and regard torts as basically a utilitarian regulatory body of law. (That’s a rough characterization, but the details are persuasively spelled out by John Goldberg and Ben Zipurksy in The Moral of MacPherson, 146 U. Pa. L. Rev. 1733 (1998)). The great merit, among others, of the civil recourse view of Goldberg and Zipurksy is to rebut that skepticism and bring some legal structure back into the discussion of duties of care.
The same kind of argument can, I think, also be brought to bear on the element of proximate causation, though proximate cause is probably trickier than duty. I started thinking about this when I read a blog post from a while ago by Alexander Pruss on “causation in the right way:"
It's a medieval dictum that causes contain their effects. But that needs qualification. Causes in a sense contain their proper effects. They contain those proper effects as telê, and then some aspect of the effect--perhaps with cooperation or thwarting from other causes--just is an actualization of the cause with that telos. When all goes well, the whole of the teleologically specified effect is an actualization of the cause, but in aberrant cases, very little is....
[W]e could say that when x causes y in the right way, then being-an-actualization-of-x is an intrinsic feature of y, a feature that is causally involved in everything y does, and so when y causes z in the right way, z has the intrinsic feature of being-an-actualization-of-y, and we can go back down the chain to x. Perhaps this is what Aquinas means by per se ordered causal series.
This isn't the place for a complete account of how to map "causation in the right way" onto the element of proximate cause in torts, but I think that account would be a helpful corrective to so much blather in torts casebooks about proximate cause as a free-for-all policy judgment. And most importantly, as Pruss notes, such an account would "require a fairly non-reductive metaphysics of human beings."
I’ve been reading a lot of Bernard Williams lately—partly for some professional reasons, partly out of sheer enjoyment and admiration for his bracing arguments. His critique of utilitarianism seems to me still underappreciated by legal scholars, but why that might be so and its importance are topics for another time. Here is a little bit from his essay “The Makropulos Case: Reflections on the Tedium of Immortality” (from his 1973 collection Problems of the Self) discussing the Spanish philosopher Miguel de Unamuno--and with perhaps some important implications for law:
Unamuno reveals himself at equal removes from Manicheanism and from Utilitarianism; and that is correct, for the one is only the one-legged descendant of the other. That tradition – Manichean, Orphic, Platonic, Augustinian* – which contrasts the spirit and the body in such a sense that the spiritual aims at eternity, truth and salvation, while the body is adjusted to pleasure, the temporary, and eventual dissolution, is still represented, as to fifty per cent, by secular Utilitarianism: it is just one of the original pair of boots left by itself and better regarded now that the other has fallen into disrepair. Bodies are all that we have or are: hence for Utilitarianism it follows that the only focus of our arrangements can be the efficient organisation of happiness. Immortality, certainly, is out, and so life here should last as long as we determine – or eventually, one may suspect, others will determine – that it is pleasant for us to be around.
Unamuno’s outlook is at the opposite pole to this and whatever else may be wrong with it, it salutes the true idea that the meaning of life does not consist either in the management of satisfactions in a body or in an abstract immortality without one. On the one hand he had no time for Manicheanism, and admired the rather brutal Catholic faith which could express its hopes for a future life in the words which he knew on a tombstone in Bilbao:
Aunque estamos in polvo convertidos
zen Ti, Señor, nuestra esperanza fía,
que tomaremos a vivir vestidos
con la carne y la piel que nos cubria.**
*I don’t think it's quite accurate to lump “Augustinian” into this set of views given Augustine's break (how much so is a long-running debate) from Manichaeism.
**Though we are become dust,
In thee, O Lord, our hope confides,
That we shall live again clad
In the flesh and skin that once covered us.
(Miguel de Unamuno, The Tragic Sense of Life (1921), trans. J.E. Crawford Flitch)
Friday, July 29, 2016
Theologian Anna Bonta Moreland (who happens to be my wife) and I discussed Pope Francis's apostolic exhortation Amoris Laetitia at the University of Chicago Divinity School a few weeks ago at an event sponsored by the Lumen Christi Institute, and the video has been posted here. For MOJ purposes, I included some remarks about implications for the law raised by the document in the areas of marriage, education, and adoption.
Thursday, January 28, 2016
I am teaching a seminar this semester at Notre Dame on Catholic social thought and law, and this week we are discussing the remarkable legacy of Pope Leo XIII (r. 1878-1903) through an examination of his famous social encyclical Rerum Novarum (1891) and other writings. For today's Feast of Saint Thomas Aquinas, here is a bit from Aeterni Patris (1879), the encyclical that rehabilitated the place of philosophy in modern Catholic intellectual life (and may all of us aspire to follow Thomas's example by "wanting neither...soundness of principles or strength of argument").
Among the Scholastic Doctors, the chief and master of all towers Thomas Aquinas, who, as Cajetan observes, because "he most venerated the ancient doctors of the Church, in a certain way seems to have inherited the intellect of all."(34) The doctrines of those illustrious men, like the scattered members of a body, Thomas collected together and cemented, distributed in wonderful order, and so increased with important additions that he is rightly and deservedly esteemed the special bulwark and glory of the Catholic faith. With his spirit at once humble and swift, his memory ready and tenacious, his life spotless throughout, a lover of truth for its own sake, richly endowed with human and divine science, like the sun he heated the world with the warmth of his virtues and filled it with the splendor of his teaching. Philosophy has no part which he did not touch finely at once and thoroughly; on the laws of reasoning, on God and incorporeal substances, on man and other sensible things, on human actions and their principles, he reasoned in such a manner that in him there is wanting neither a full array of questions, nor an apt disposal of the various parts, nor the best method of proceeding, nor soundness of principles or strength of argument, nor clearness and elegance of style, nor a facility for explaining what is abstruse.
Thursday, January 21, 2016
Thursday, January 14, 2016
I was hoping someone would give me a chance to say something about Monday’s oral argument in Friedrichs v. California Teachers Association, and MOJ-friend Michael Sean Winters graciously obliges over at his blog in a post about the latest “assault” on unions. Michael Sean and I have been around before on some issues about Catholic social teaching and unions, so why stop now?
One can, as I do, subscribe to the Catholic Church’s teaching from Rerum Novarum on about the role of unions in civil society, appreciate much in the insightful paper by Lew Daly to which Michael Sean cites, and yet think all of that has nothing to do with the issues in Friedrichs.
For starters, I think Michael Sean is a little cavalier in writing that Friedrichs is “not really about the First Amendment at all.” That’s a conclusion, not an argument. And on the law of the First Amendment, Friedrichs poses some hard questions (unless, I suppose, one is prepared broadly to countenance compelled subsidization of speech). I am not sure the point of Michael Sean’s initial hypotheticals about violations of trade secrets and trademarks, but the issue in Friedrichs strikes me as quite different. No one doubts that violations of trade secrets and trademarks can be sanctioned. But can the state require as a condition of public sector employment that a non-union member pay an agency fee? That’s a difficult question, and the answer the Court gave almost 40 years ago in Abood v. Detroit Board of Education is badly reasoned (as just one example, by assuming the constitutionality of compulsory payments based on two private sector union cases, Railway Employees’ Department v. Hanson and Machnists v. Street, that dealt with the First Amendment issue in a sentence and not at all, respectively). A cite to Rerum Novarum doesn’t resolve the free speech question.
And then there’s the basic distinction between private and public sector unions. The permissibility of agency dues in the private sector isn’t at issue in Friedrichs (conceded at the outset of oral argument by Michael Carvin), so it’s a little hard to see how this is an all-out “assault” against unions. Nor does Friedrichs question the permissibility of agency shop arrangements in either the public or private sector, only whether non-union members must subsidize a public employee union’s political activity—so the arguments in Michael Sean’s penultimate paragraph about union formation seem to me beside the point. The line between collective bargaining and political activity for public sector unions is impossible to draw, and that’s the core of the plaintiffs legal argument against the compulsory agency fee. As Justice Kennedy put it at oral argument:
The union basically is making these teachers compelled riders for issues on which they strongly disagree. Many teachers think that they are devoted to the future of America, to the future of our young people, and that the union is equally devoted to that but that the union is absolutely wrong in some of its positions. And agency fees require, as I understand it—correct me if I'm wrong—agency fees require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points.
Finally, could I make a plea here for scholars working on Catholic social thought to spend a little time confronting the classic argument by Ralph Winter and Harry Wellington about public sector collective bargaining before waxing rhapsodic about Rerum Novarum and the unalloyed blessings that unions provide? As Rick Hills put it a while ago, the inelasticity of demand for their services and manipulation of the political process to their advantage means that public employee unions are differently situated than, say, trade unions. There are all sorts of bad policies created when public union-controlled services (prisons and public schools in some areas, for example) are consumed largely by lower income people, which is, at least arguably, part of the reason why we have so many prisons and such bad public schools (as Rick points out, the prison guard union in California was a powerful lobby for "three strikes, you're out" life sentencing). I hope the plaintiffs prevail in Friedrichs because that’s the right legal outcome, but I also think it would be a small step to correcting some of our injustices and policy distortions.